The Federalist Paper #78
1) In the introduction, Hamilton states that the purpose of the essay is to discuss the “manner of constituting” the judicial
branch of government. He claims that the creation of a central judicial branch is undisputed. List the three areas he plans
to address. (2nd paragraph)
2) Explain why judges holding office as long as they maintain “good behavior” was considered one of the “most valuable of
the modern improvements in the practice of government.”(5th paragraph)
3) Explain why Hamilton claimed the judiciary branch was the weakest branch of government. (6th paragraph)
4) Explain how Hamilton claims the judiciary should maintain limitations on the legislative branch (8th paragraph)
5) Explain how the courts serve as an intermediate body (11th paragraph).
6) Hamilton argues that the Constitution contains “fundamental laws” that the judiciary should protect. Identify the types of
laws that he did not consider “fundamental” (12th paragraph)
7) According to Hamilton claims the judiciary should be independent of the legislative branch to exercise JUDGEMENT
instead of WILL. Identify how the judiciary maintains its independence in the U.S. Constitution. (16th paragraph)
8) When the “major voice of the community” influences the legislative branch to pursue policies in violation of the US
Constitution, explain why Hamilton believes that the judicial branch should uphold the prevailing/current Constitutional
interpretation (17th paragraph).
9) Explain why Hamilton believes there are “but few men in the society who will have sufficient skill in the laws to qualify
them for the station of judges.” (2nd to last paragraph)
The Federalist No. 78
The Judiciary Department
Independent Journal
Saturday, June 14, 1788
[Alexander Hamilton]
To the People of the State of New York:
WE PROCEED now to an examination of the judiciary
department of the proposed government. In unfolding the
defects of the existing Confederation, the utility and necessity
of a federal judicature have been clearly pointed out. It is the
less necessary to recapitulate the considerations there urged,
as the propriety of the institution in the abstract is not disputed;
the only questions which have been raised being relative to the
manner of constituting it, and to its extent. To these points,
therefore, our observations shall be confined.
The manner of constituting it seems to embrace these several
objects: 1st. The mode of appointing the judges. 2d. The
tenure by which they are to hold their places. 3d. The partition
of the judiciary authority between different courts, and their
relations to each other.
First. As to the mode of appointing the judges; this is the same
with that of appointing the officers of the Union in general, and
has been so fully discussed in the two last numbers, that
nothing can be said here which would not be useless
repetition.
Second. As to the tenure by which the judges are to hold their
places; this chiefly concerns their duration in office; the
provisions for their support; the precautions for their
responsibility.
According to the plan of the convention, all judges who may be
appointed by the United States are to hold their offices during
good behavior; which is conformable to the most approved of
the State constitutions and among the rest, to that of this State.
Its propriety having been drawn into question by the
adversaries of that plan, is no light symptom of the rage for
objection, which disorders their imaginations and judgments.
The standard of good behavior for the continuance in office of
the judicial magistracy, is certainly one of the most valuable of
the modern improvements in the practice of government. In a
monarchy it is an excellent barrier to the despotism of the
prince; in a republic it is a no less excellent barrier to the
encroachments and oppressions of the representative body.
And it is the best expedient which can be devised in any
government, to secure a steady, upright, and impartial
administration of the laws.
Whoever attentively considers the different departments of
power must perceive, that, in a government in which they are
separated from each other, the judiciary, from the nature of its
functions, will always be the least dangerous to the political
rights of the Constitution; because it will be least in a capacity
to annoy or injure them. The Executive not only dispenses the
honors, but holds the sword of the community. The legislature
not only commands the purse, but prescribes the rules by
which the duties and rights of every citizen are to be regulated.
The judiciary, on the contrary, has no influence over either the
sword or the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution
whatever. It may truly be said to have
neither FORCE nor WILL, but merely judgment; and must
ultimately depend upon the aid of the executive arm even for
the efficacy of its judgments.
This simple view of the matter suggests several important
consequences. It proves incontestably, that the judiciary is
beyond comparison the weakest of the three departments of
power1; that it can never attack with success either of the other
two; and that all possible care is requisite to enable it to defend
itself against their attacks. It equally proves, that though
individual oppression may now and then proceed from the
courts of justice, the general liberty of the people can never be
endangered from that quarter; I mean so long as the judiciary
remains truly distinct from both the legislature and the
Executive. For I agree, that "there is no liberty, if the power of
judging be not separated from the legislative and executive
powers."2 And it proves, in the last place, that as liberty can
have nothing to fear from the judiciary alone, but would have
every thing to fear from its union with either of the other
departments; that as all the effects of such a union must ensue
from a dependence of the former on the latter, notwithstanding
a nominal and apparent separation; that as, from the natural
feebleness of the judiciary, it is in continual jeopardy of being
overpowered, awed, or influenced by its co-ordinate branches;
and that as nothing can contribute so much to its firmness and
independence as permanency in office, this quality may
therefore be justly regarded as an indispensable ingredient in
its constitution, and, in a great measure, as the citadel of the
public justice and the public security.
The complete independence of the courts of justice is
peculiarly essential in a limited Constitution. By a limited
Constitution, I understand one which contains certain specified
exceptions to the legislative authority; such, for instance, as
that it shall pass no bills of attainder, no ex post facto laws, and
the like. Limitations of this kind can be preserved in practice no
other way than through the medium of courts of justice, whose
duty it must be to declare all acts contrary to the manifest tenor
of the Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to
pronounce legislative acts void, because contrary to the
Constitution, has arisen from an imagination that the doctrine
would imply a superiority of the judiciary to the legislative
power. It is urged that the authority which can declare the acts
of another void, must necessarily be superior to the one whose
acts may be declared void. As this doctrine is of great
importance in all the American constitutions, a brief discussion
of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than
that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No
legislative act, therefore, contrary to the Constitution, can be
valid. To deny this, would be to affirm, that the deputy is
greater than his principal; that the servant is above his master;
that the representatives of the people are superior to the
people themselves; that men acting by virtue of powers, may
do not only what their powers do not authorize, but what they
forbid.
If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the
construction they put upon them is conclusive upon the other
departments, it may be answered, that this cannot be the
natural presumption, where it is not to be collected from any
particular provisions in the Constitution. It is not otherwise to
be supposed, that the Constitution could intend to enable the
representatives of the people to substitute their will to that of
their constituents. It is far more rational to suppose, that the
courts were designed to be an intermediate body between the
people and the legislature, in order, among other things, to
keep the latter within the limits assigned to their authority. The
interpretation of the laws is the proper and peculiar province of
the courts. A constitution is, in fact, and must be regarded by
the judges, as a fundamental law. It therefore belongs to them
to ascertain its meaning, as well as the meaning of any
particular act proceeding from the legislative body. If there
should happen to be an irreconcilable variance between the
two, that which has the superior obligation and validity ought,
of course, to be preferred; or, in other words, the Constitution
ought to be preferred to the statute, the intention of the people
to the intention of their agents.
Nor does this conclusion by any means suppose a superiority
of the judicial to the legislative power. It only supposes that the
power of the people is superior to both; and that where the will
of the legislature, declared in its statutes, stands in opposition
to that of the people, declared in the Constitution, the judges
ought to be governed by the latter rather than the former. They
ought to regulate their decisions by the fundamental laws,
rather than by those which are not fundamental.
This exercise of judicial discretion, in determining between two
contradictory laws, is exemplified in a familiar instance. It not
uncommonly happens, that there are two statutes existing at
one time, clashing in whole or in part with each other, and
neither of them containing any repealing clause or expression.
In such a case, it is the province of the courts to liquidate and
fix their meaning and operation. So far as they can, by any fair
construction, be reconciled to each other, reason and law
conspire to dictate that this should be done; where this is
impracticable, it becomes a matter of necessity to give effect to
one, in exclusion of the other. The rule which has obtained in
the courts for determining their relative validity is, that the last
in order of time shall be preferred to the first. But this is a mere
rule of construction, not derived from any positive law, but from
the nature and reason of the thing. It is a rule not enjoined
upon the courts by legislative provision, but adopted by
themselves, as consonant to truth and propriety, for the
direction of their conduct as interpreters of the law. They
thought it reasonable, that between the interfering acts of an
EQUAL authority, that which was the last indication of its will
should have the preference.
But in regard to the interfering acts of a superior and
subordinate authority, of an original and derivative power, the
nature and reason of the thing indicate the converse of that
rule as proper to be followed. They teach us that the prior act
of a superior ought to be preferred to the subsequent act of an
inferior and subordinate authority; and that accordingly,
whenever a particular statute contravenes the Constitution, it
will be the duty of the judicial tribunals to adhere to the latter
and disregard the former.
It can be of no weight to say that the courts, on the pretense of
a repugnancy, may substitute their own pleasure to the
constitutional intentions of the legislature. This might as well
happen in the case of two contradictory statutes; or it might as
well happen in every adjudication upon any single statute. The
courts must declare the sense of the law; and if they should be
disposed to exerciseWILL instead of JUDGMENT, the
consequence would equally be the substitution of their
pleasure to that of the legislative body. The observation, if it
prove any thing, would prove that there ought to be no judges
distinct from that body.
If, then, the courts of justice are to be considered as the
bulwarks of a limited Constitution against legislative
encroachments, this consideration will afford a strong
argument for the permanent tenure of judicial offices, since
nothing will contribute so much as this to that independent
spirit in the judges which must be essential to the faithful
performance of so arduous a duty.
This independence of the judges is equally requisite to guard
the Constitution and the rights of individuals from the effects of
those ill humors, which the arts of designing men, or the
influence of particular conjunctures, sometimes disseminate
among the people themselves, and which, though they
speedily give place to better information, and more deliberate
reflection, have a tendency, in the meantime, to occasion
dangerous innovations in the government, and serious
oppressions of the minor party in the community. Though I
trust the friends of the proposed Constitution will never concur
with its enemies,3 in questioning that fundamental principle of
republican government, which admits the right of the people to
alter or abolish the established Constitution, whenever they
find it inconsistent with their happiness, yet it is not to be
inferred from this principle, that the representatives of the
people, whenever a momentary inclination happens to lay hold
of a majority of their constituents, incompatible with the
provisions in the existing Constitution, would, on that account,
be justifiable in a violation of those provisions; or that the
courts would be under a greater obligation to connive at
infractions in this shape, than when they had proceeded wholly
from the cabals of the representative body. Until the people
have, by some solemn and authoritative act, annulled or
changed the established form, it is binding upon themselves
collectively, as well as individually; and no presumption, or
even knowledge, of their sentiments, can warrant their
representatives in a departure from it, prior to such an act. But
it is easy to see, that it would require an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the Constitution, where legislative invasions of it had been
instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only,
that the independence of the judges may be an essential
safeguard against the effects of occasional ill humors in the
society. These sometimes extend no farther than to the injury
of the private rights of particular classes of citizens, by unjust
and partial laws. Here also the firmness of the judicial
magistracy is of vast importance in mitigating the severity and
confining the operation of such laws. It not only serves to
moderate the immediate mischiefs of those which may have
been passed, but it operates as a check upon the legislative
body in passing them; who, perceiving that obstacles to the
success of iniquitous intention are to be expected from the
scruples of the courts, are in a manner compelled, by the very
motives of the injustice they meditate, to qualify their attempts.
This is a circumstance calculated to have more influence upon
the character of our governments, than but few may be aware
of. The benefits of the integrity and moderation of the judiciary
have already been felt in more States than one; and though
they may have displeased those whose sinister expectations
they may have disappointed, they must have commanded the
esteem and applause of all the virtuous and disinterested.
Considerate men, of every description, ought to prize whatever
will tend to beget or fortify that temper in the courts: as no man
can be sure that he may not be to-morrow the victim of a spirit
of injustice, by which he may be a gainer to-day. And every
man must now feel, that the inevitable tendency of such a spirit
is to sap the foundations of public and private confidence, and
to introduce in its stead universal distrust and distress.
That inflexible and uniform adherence to the rights of the
Constitution, and of individuals, which we perceive to be
indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary
commission. Periodical appointments, however regulated, or
by whomsoever made, would, in some way or other, be fatal to
their necessary independence. If the power of making them
was committed either to the Executive or legislature, there
would be danger of an improper complaisance to the branch
which possessed it; if to both, there would be an unwillingness
to hazard the displeasure of either; if to the people, or to
persons chosen by them for the special purpose, there would
be too great a disposition to consult popularity, to justify a
reliance that nothing would be consulted but the Constitution
and the laws.
There is yet a further and a weightier reason for the
permanency of the judicial offices, which is deducible from the
nature of the qualifications they require. It has been frequently
remarked, with great propriety, that a voluminous code of laws
is one of the inconveniences necessarily connected with the
advantages of a free government. To avoid an arbitrary
discretion in the courts, it is indispensable that they should be
bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case that
comes before them; and it will readily be conceived from the
variety of controversies which grow out of the folly and
wickedness of mankind, that the records of those precedents
must unavoidably swell to a very considerable bulk, and must
demand long and laborious study to acquire a competent
knowledge of them. Hence it is, that there can be but few men
in the society who will have sufficient skill in the laws to qualify
them for the stations of judges. And making the proper
deductions for the ordinary depravity of human nature, the
number must be still smaller of those who unite the requisite
integrity with the requisite knowledge. These considerations
apprise us, that the government can have no great option
between fit character; and that a temporary duration in office,
which would naturally discourage such characters from quitting
a lucrative line of practice to accept a seat on the bench, would
have a tendency to throw the administration of justice into
hands less able, and less well qualified, to conduct it with utility
and dignity. In the present circumstances of this country, and in
those in which it is likely to be for a long time to come, the
disadvantages on this score would be greater than they may at
first sight appear; but it must be confessed, that they are far
inferior to those which present themselves under the other
aspects of the subject.
Upon the whole, there can be no room to doubt that the
convention acted wisely in copying from the models of those
constitutions which have established good behavior as the
tenure of their judicial offices, in point of duration; and that so
far from being blamable on this account, their plan would have
been inexcusably defective, if it had wanted this important
feature of good government. The experience of Great Britain
affords an illustrious comment on the excellence of the
institution.
PUBLIUS
1. The celebrated Montesquieu, speaking of them, says: "Of
the three powers above mentioned, the judiciary is next to
nothing." -- Spirit of Laws. Vol. I, page 186.
2. Idem, page 181.
3. Vide Protest of the Minority of the Convention of
Pennsylvania, Martin's Speech, etc.